Jackson v. Credit Control, LLC

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 23-cv-02074-NYW-KAS
JHESHUA JACKSON,
Plaintiff,
v.
CREDIT CONTROL, LLC, and RICHARD G. SAFFER,
Defendants.
ORDER ON RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on the Recommendation of United States Magistrate
Judge Kathryn A. Starnella (“Recommendation”), [Doc. 25], on the Motion to Dismiss (“Motion
to Dismiss” or “Motion”), [Doc. 16], filed by Defendants Credit Control, LLC, and Richard G.
Saffer. Judge Starnella recommends that Defendants’ Motion to Dismiss be denied as to Plaintiff
Jheshua Jackson’s 15 U.S.C. § 1692g Fair Debt Collection Practices Act claim against Credit
Control, LLC, to the extent it is premised on written requests for validation, and granted as to all
other claims. 	[Doc. 25 at 12 (the “Recommendation”)]. 	Credit Control, LLC, objects to Judge
Starnella’s recommendation that the Motion to Dismiss be denied in part (the “Objection”). [Doc.
27]. Plaintiff Jheshua Jackson has not objected to the Recommendation, and the time to do so has
elapsed. 	See Fed. R. Civ. P. 72(b)(2) (“Within 14 days after being served with a copy of the
recommended disposition, a party may serve and file specific written objections to the proposed
findings and recommendations.”); cf. [Doc. 28 (Plaintiff’s Response to Court’s Observations and
Motions for Appointment of Counsel and Motion for 30 Day [sic] Extension to Obtain Counsel or
to Amend Complaint, and Motion Requesting Alternative Dispute Resolution Pursuant to Local
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Rule 16.6)].1
For the reasons below, the Court respectfully OVERRULES the Objection, and ADOPTS
the Recommendation, which is incorporated into this Order by reference. 	See 28 U.S.C.
§ 636(b)(1)(B); Fed. R. Civ. P. 72(b).
BACKGROUND
Plaintiff Jheshua Jackson (“Plaintiff” or “Mr. Jackson”) initiated this action in Arapahoe
County Court, [Doc. 15], and Defendant Credit Control, LLC, (“Credit Control”) and its CEO,
Defendant Richard G. Saffer (“Mr. Saffer” and collectively, “Defendants”) removed it to the
United States District Court for the District of Colorado on August 15, 2023, on the basis of federal
question jurisdiction. 	[Doc. 1]. 	In this action, Mr. Jackson challenges Defendants’ attempts to
collect on an alleged debt of $5,596.94 owed by Mr. Jackson.2 [Doc. 15 at ¶¶ 9–15]. Mr. Jackson
alleges that he does not owe money to Defendants, and argues that Defendants “failed to validate
[their] claim as required by the Fair Debt Collection Practices Act” (“FDCPA”) and have “made
false or factual[ly] incorrect claims or statements to various credit reporting bureaus or services
against [him] and misrepresented material facts about the disputed account” in violation of the Fair
Credit Reporting Act (“FCRA”). [Doc. 15 at 5–6]. In addition to his FDCPA and FCRA claims,
Plaintiff also appears to assert claims based on “[c]ontract law” and the Uniform Commercial Code
(“U.C.C.”). 	See [Doc. 15 at ¶ 9 (alleging that Defendants have violated, among other things,
“Contract law” and “C.R.S. Title 4 (UCC)”)]. 	As support for his FDCPA claim, Mr. Jackson
1 	This 	Court 	does 	not 	construe 	this 	filing 	as 	an 	Objection 	to 	the 	Magistrate 	Judge’s
Recommendation because it does not refer to the Recommendation or address any of Judge
Starnella’s substantive findings.
2 The Court draws the following factual background from the Recommendation and Plaintiff’s
Complaint (the “Complaint”), [Doc. 15], and presumes the well-pleaded allegations in the
Complaint are true for purposes of this Order.
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alleges that, in response to Defendants’ communications regarding collection, he made three
requests for validation of the alleged debt—a verbal request on March 7, 2023, and two written
requests on March 10, 2023, and March 20, 2023, respectively—but did not receive proper
validation from Defendants. [Doc. 15 at 5; Doc. 25 at 2].
Defendants moved to dismiss Plaintiff’s Complaint for failure to state a claim pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. [Doc. 16]. As pertinent here, Defendants
assert that they provided a sufficient response to a written request for validation sent by Mr.
Jackson on March 10, 2023, [Doc. 16 at ¶ 2; Doc. 16-5 at 3–5], and have attached a copy of their
validation response letter to their Motion as proof, [Doc. 16-5]. This Court referred the Motion to
Dismiss to Judge Starnella pursuant to 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b)(1), and
D.C.COLO.LCivR 72.1(c)(3). [Doc. 18]. Mr. Jackson filed a Response (the “Response”), [Doc.
21], and Defendants replied (the “Reply”), [Doc. 22].
Judge Starnella recommends that Defendants’ Motion be granted in part and denied in part.
[Doc. 25]. First, Judge Starnella would dismiss all claims against Mr. Saffer without prejudice,
given that, beyond naming him as a defendant, Plaintiff does not further mention Mr. Saffer or
allege any actions taken by Mr. Saffer, either in his Complaint or in response to the Motion to
Dismiss. 	[Id. at 5–6]. 	Next, observing that the Complaint lacks clarity as to whether Plaintiff
intends to assert separate breach of contract or U.C.C. claims against Credit Control, and, if so,
what allegations support those claims, Judge Starnella recommends that any such claims be
dismissed without prejudice. [Id. at 6–7]. As to Plaintiff’s FCRA claim, Judge Starnella concludes
that because Mr. Jackson does not allege that a Credit Reporting Agency (“CRA”) had notified
Credit Control of a dispute, he cannot state a claim for a FCRA violation. 	[Id. at 7–9
(recommending that Plaintiff’s FCRA claim be dismissed without prejudice) (citing Willis v.
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Capital One Corp., 611 F. App’x 500, 502 (10th Cir. 2015) (“[A] furnisher’s duty to investigate
[a dispute] arises only after a CRA notifies the furnisher of a dispute and, conversely, does not
arise when notice is provided directly from a consumer.” (cleaned up)))].
Turning to Plaintiff’s FDCPA claim against Credit Control, Judge Starnella notes that
although Plaintiff has asserted violations of various sections of the FDCPA, namely 15 U.S.C.
§§ 1692c, 1692e, 1692f, and 1692g, the allegations in his complaint are only directed towards
§ 1692g, [id. at 10], which provides that if a consumer “notifies [a] debt collector in writing . . . that
the debt . . . is 	disputed, . . . the debt 	collector 	shall 	cease collection . . . until 	[he] 	obtains
verification of the debt . . . , and [mails] a copy of such verification . . . to the consumer,” 15 U.S.C.
§ 1692g(b). Accordingly, she finds that the Complaint lacks clarity as to whether Plaintiff intends
to assert violations of other sections of the FDCPA, and, if so, which allegations support such
violations, and recommends that any such claims be dismissed without prejudice on that basis.
[Id.]. And, because the verification requirement of § 1692g(b) is only triggered by a consumer’s
written notice of dispute, Judge Starnella recommends dismissal of Mr. Jackson’s § 1692g claim
with prejudice to the extent it is premised on his verbal request for validation of the debt. [Doc.
25 at 10–12 (citing Robinson v. ACG Processing, No. 17-cv-02725-MSK-STV, 2018 WL
4932025, at *7 (D. Colo. Oct. 11, 2018) (dismissing a § 1692g claim because a debt collector only
has a duty to validate a debt upon written notice))].
That leaves Plaintiff’s § 1692g claim against Credit Control to the extent that it is based on
his alleged written requests for validation, which Judge Starnella finds is supported by sufficient
factual allegations to survive the Motion to Dismiss. 	[Id. at 12]. 	Consistent with § 1692g(b)’s
terms, Plaintiff has alleged that he “timely notified Defendants in writing of his request for
validation of the debt, and that Defendants ‘failed to validate’ the debt in violation of the FDCPA.”
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[Id. (quoting [Doc. 15 at 5])]. And although Credit Control argues it complied with the statute’s
verification requirement, this contention, Judge Starnella observes, rests on the validation response
letter Credit Control claims it mailed to Mr. Jackson on March 17, 2023, which she declined to
consider because it is not referenced in Plaintiff’s Complaint. [Id. at 4–5 (quoting GFF Corp. v.
Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997) (“[I]f a plaintiff does
not incorporate by reference or attach a document to its complaint, but the document is referred to
in the complaint and is central to the plaintiff’s claim, a defendant may submit an indisputably
authentic copy . . . to be considered on a motion to dismiss.”)); id. at 12]. 	Under these
circumstances, Judge Starnella finds, Credit Control has not shown that Mr. Jackson has failed to
state a claim upon which relief can be granted. [Id. at 12]. Thus, Judge Starnella recommends that
the Motion to Dismiss be denied to the extent that Credit Control seeks dismissal of the § 1962g
FDCPA claim. [Id.].3
Credit Control4 objects only to this last portion of Judge Starnella’s Recommendation.
[Doc. 27]. In its view, Judge Starnella should have considered the validation response letter that
Defendants attached to their Motion to Dismiss, see [Doc. 16-5], which, Credit Control asserts,
defeats Mr. Jackson’s § 1692g claim. 	See generally [Doc. 27]. 	Plaintiff has not responded to
3 Although Plaintiff mentions the Colorado Fair Debt Collection Practices Act in his Response to
the Motion to Dismiss, he did not assert any claim based on the state statute in his Complaint and,
therefore, Judge Starnella does not address any such claim in her Recommendation. [Doc. 25 at 9
n.5 (citing Loma v. City & Cnty. of Denver, No. 21-cv-02214-NYW-KLM, 2023 WL 2574377, at
*7 n.7 (D. Colo. Mar. 20, 2023) (holding that a plaintiff may not use his response to amend the
causes of action asserted in the operative complaint))]. 	This Court concurs that the Complaint
cannot be fairly read to include such a claim. See generally [Doc. 15].
4 Although both Defendants purport to object to Judge Starnella’s Recommendation, see, e.g.,
[Doc. 27 at 1–2, 8], this part of the Recommendation only pertains to Plaintiff’s § 1692g claim
against Credit Control.
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Credit Control’s Objection,5 nor has he objected to the Recommendation.
STANDARD OF REVIEW
This Court reviews de novo any part of the magistrate judge’s recommendation that is
properly objected to. 	Fed. R. Civ. P. 72(b)(3). 	An objection is proper only if it is sufficiently
specific “to focus the district court’s attention on the factual and legal issues that are truly in
dispute.” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). But
“[i]n the absence of a timely objection, the district court may review a magistrate’s report under
any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see
also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to
require district court review of a [magistrate judge’s] factual or legal conclusions, under a de novo
or any other standard, when neither party objects to those findings.”).
Additionally, the Court observes that because Plaintiff is proceeding pro se, the Court
affords his filings a liberal construction. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972). That
said, it is not this Court’s function “to assume the role of advocate for the pro se litigant.”
Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)).
ANALYSIS
According to Credit Control, Judge Starnella erred in not considering the validation
response letter attached to the Motion to Dismiss, [Doc. 16-5], because the document is central to
Plaintiff’s § 1692g FDCPA claim, and its authenticity is not disputed. [Doc. 27]. In ignoring the
letter, Credit Control argues, the Recommendation effectively allows Mr. Jackson’s “deficient
5 In its discretion, the Court addresses Credit Control’s Objection without awaiting a response from
Mr. Jackson. See D.C.COLO.LCivR 7.1(d).
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claim” to “survive a motion to dismiss simply by not attaching a dipositive document upon which
the plaintiff relied.” [Id. at 6 (quoting GFF Corp., 130 F.3d at 1385)].
But, as Judge Starnella found, Plaintiff did not rely on the validation response letter or
otherwise reference it in his Complaint, and therefore the document cannot be considered without
converting the Motion to Dismiss to one for summary judgment. See [Doc. 25 at 5 (“[T]he Court
finds that it may not consider . . . the Validation Response Letter[] mailed to Plaintiff by Credit
Control on March 17, 2023, because Plaintiff does not reference it in his Complaint.” (citation
omitted))]; see also Brokers’ Choice of Am., Inc. v. NBS Universal, Inc., 861 F.3d 1081, 1104
(10th Cir. 2017) (“A district court may, however, consider documents attached to or referenced in
the complaint if they are central to the plaintiff’s claim and the parties do not dispute the
documents’ 	authenticity.” 	(emphasis 	added) 	(internal 	quotation 	marks 	omitted) 	(citing
Jacobsen v. Desert Book Co., 287 F.3d 936, 941 (10th Cir. 2002))); GFF Corp., 130 F.3d at 1384
(10th Cir. 1997) (“[I]f a plaintiff does not incorporate by reference or attach a document to its
complaint, but the document is referred to in the complaint and is central to the plaintiff’s claim,
a defendant may submit an indisputably authentic copy . . . to be considered on a motion to
dismiss.” (emphasis added)). Indeed, the Complaint “affirmatively states that ‘Defendant failed
to validate its claim,’ and refers to no other written communication from [Credit Control] which
could be construed to be [the validation response letter].” [Doc. 25 at 5]. Accordingly, this Court
finds that Judge Starnella properly exercised her “broad discretion” in declining to consider the
validation response letter because the letter was not referenced in Plaintiff’s Complaint. 	See
Brokers’ Choice, 861 F.3d at 1104; see also Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th
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Cir. 1998).6 	For the foregoing reasons, the Court respectfully OVERRULES Credit Control’s
Objection.
The Parties do not object to the balance of the Recommendation, in which Judge Starnella
recommends that the remainder of Plaintiff’s claims be dismissed. See [Doc. 25]. The Court has
reviewed the Recommendation to satisfy itself that there is “no clear error on the face of the
record,”7 Fed. R. Civ. P. 72(b), advisory committee’s note to 1983 amendment, and finds that the
Recommendation is thorough, well-reasoned, and a correct application of the facts and the law.
Consequently, the Court respectfully ADOPTS Judge Starnella’s Recommendation in full.
CONCLUSION
For the foregoing reasons, it is ORDERED that:
(1) 	Defendant’s 	Objection 	to 	the 	Report 	and 	Recommendation 	[Doc. 	27] 	is
OVERRULED;
(2) 	The Recommendation of United States Magistrate Judge Kathryn A. Starnella
[Doc. 25] is ADOPTED;
6 If, on a motion under Rule 12(b)(6), matters outside of the pleadings are presented, a court must
generally treat the motion as one for summary judgment under Rule 56 of the Federal Rules of
Civil Procedure. Fed. R. Civ. 12(d). When converting a motion to dismiss to one for summary
judgment, courts must give notice to the parties to avoid unfair surprise, unless the circumstances
of the motions practice reflects that the parties were otherwise on notice. See, e.g., Burnham v.
Humphrey Hosp. Reit Tr., Inc., 403 F.3d 709, 713 (10th Cir. 2005) (“When a district court
[converts a motion to dismiss into one for summary judgment], it must provide the parties with
notice so that all factual allegations may be met with countervailing evidence.”); Klover v. Antero
Healthplans, 64 F. Supp. 2d 1003, 1007 (D. Colo. 1999). The conversion process, however, is not
automatic. 	Rather, the decision whether to convert a motion to dismiss to one for summary
judgment is reserved to the court’s discretion. See Humood v. City of Aurora, No. 12-cv-02185-
RM-CBS, 2014 WL 4345410, at *5 (D. Colo. Aug. 28, 2014) (Moore, J.) (adopting Magistrate
Judge’s Recommendation in its entirety). 	Here, Judge Starnella was within her discretion to
decline to give notice of conversion of the motion to one for summary judgment or recommend
such conversion.
7 This standard of review is something less than a “clearly erroneous or contrary to law” standard
of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review. Fed. R. Civ. P. 72(b).
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(3) 	Defendants’ Motion to Dismiss [Doc. 16] is GRANTED in part and DENIED in
part;
(4) 	Plaintiff’s claims against Defendant Richard G. Saffer are DISMISSED without
prejudice;
(5) 	Plaintiff’s claims against Defendant Credit Control, LLC—except for the 15 U.S.C.
§ 1692g FDCPA claim—are DISMISSED without prejudice;
(6) 	Plaintiff’s 15 U.S.C. § 1692g FDCPA claim against Defendant Credit Control,
LLC, is DISMISSED with prejudice only to the extent premised on his verbal
validation request; and
(7) 	The Clerk of Court is DIRECTED to mail a copy of this Order to:
Jheshua Jackson
4545 East Warren Avenue, #410
Denver, CO 80222
DATED: November 15, 2023 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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